‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Sunday, 21 September 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 38

INTERNATIONAL ARMED CONFLICTS - The case of Hassan v. the United Kingdom concerned the acts of British armed forces in Iraq, extra-territorial jurisdiction and the application of the European Convention of Human Rights in the context of an international armed conflict. In particular, this was the first case in which a contracting State had requested the Court to disapply its obligations under Article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law. An Iraqi national, Tarek Hassan, was captured by the British armed forces and his detention at Camp Bucca in southeastern Iraq during the hostilities in 2003. His brother claims that Tarek was under the control of British forces, and that his dead body was subsequently found bearing marks of torture and  execution.

 In its Grand Chamber judgment1 the Court held, unanimously, that the capture and detention of Mr Hassan was not arbitrary. Tarek Hassan had been within the jurisdiction of the United Kingdom between the time of his arrest by British troops, in April 2003, until his release from the bus that had taken him from Camp Bucca under military escort to a drop-off point, in May 2003; but by 13 votes to 4, that there had been no violation of Article 5 §§ 1, 2 , 3 or 4 (right to liberty and security) of the European Convention on Human Rights as concerned the actual capture and detention of Tarek Hassan. The Court decided that international humanitarian law and the European Convention both provided safeguards from arbitrary detention in time of armed conflict and that the grounds of permitted deprivation of liberty set out in Article 5 of the Convention should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. In the present case, it found that there had been legitimate grounds under international law for capturing and detaining Tarek Hassan, who had been found by British troops, armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value had been retrieved. Moreover, following his admission to Camp Bucca, he had been subjected to a screening process, which established that he was a civilian who did not pose a threat to security and led to his being cleared for release. Tarek Hassan’s capture and detention had not therefore been arbitrary.
"108.  The Court’s starting point is to observe that during the period in question in Iraq, all parties involved were High Contracting Parties to the Four Geneva Conventions, which apply in situations of international armed conflict and partial or total occupation of the territory of a High Contracting Party (see Article 2, common to the four Geneva Conventions, set out in paragraph 33 above). It is clear, therefore, that whether the situation in South East Iraq in late April and early May 2003 is characterised as one of occupation or of active international armed conflict, the four Geneva Conventions were applicable.
109.  The Court refers to the findings of fact which it made after analysis of all the available evidence (see paragraphs 47-57 above). In particular, it held that Tarek Hassan was found by British troops, armed and on the roof of his brother’s house, where other weapons and documents of a military intelligence value were retrieved (see paragraphs 51-54 above). The Court considers that, in these circumstances, the United Kingdom authorities had reason to believe that he might be either a person who could be detained as a prisoner of war or whose internment was necessary for imperative reasons of security, both of which provided a legitimate ground for capture and detention (see Articles 4A and 21 of the Third Geneva Convention and Articles 42 and 78 of the Fourth Geneva Convention, all set out in paragraph 33 above). Almost immediately following his admission to Camp Bucca, Tarek Hassan was subject to a screening process in the form of two interviews by United States and United Kingdom military intelligence officers, which led to his being cleared for release since it was established that he was a civilian who did not pose a threat to security (see paragraphs 21-24 above). The Court has also found that the evidence points to his having been physically released from the Camp shortly thereafter (see paragraphs 55-56 above).
110.  Against this background, it would appear that Tarek Hassan’s capture and detention was consistent with the powers available to the United Kingdom under the Third and Fourth Geneva Conventions, and was not arbitrary. Moreover, in the light of his clearance for release and physical release within a few days of being brought to the Camp, it is unnecessary for the Court to examine whether the screening process constituted an adequate safeguard to protect against arbitrary detention. Finally, it would appear from the context and the questions that Tarek Hassan was asked during the two screening interviews that the reason for his detention would have been apparent to him.
111.  It follows from the above analysis that the Court finds no violation of Article 5 §§ 1, 2, 3 or 4 in the circumstances of the present case."
"19.  In conclusion, on the facts of this case, the powers of internment under the Third and Fourth Geneva Conventions, relied on by the Govern¬ment as a permitted ground for the capture and detention of Tarek Hassan, are in direct conflict with Article 5 § 1 of the Convention. The Court does not have any legitimate tools at its disposal, as a court of law, to remedy this clash of norms. It must therefore give priority to the Convention, as its role is limited under Article 19 to “[ensuring] the observance of the engagements undertaken by the High Contracting Parties in the Convention and the Protocols thereto”. By attempting to reconcile the irreconcilable, the majority’s finding today does not, with respect, reflect an accurate under¬standing of the scope and substance of the fundamental right to liberty under the Convention, as reflected in its purpose and its historical origins in the atrocities of the international armed conflicts of the Second World War."
 Also read EJIL: talk: The Grand Chamber Judgment in Hassan v UK
"Hassan reflects an extremely important decision in the ECtHR’s history. Whilst rejecting the UK’s principal argument that IHL excluded jurisdiction arising under Article 1 ECHR, it interpreted the requirements of Article 5 so as to make room for the more permissive regimes under that body of law. The Court is right to interpret Convention rights in a contextual manner. However, its reasoning, although an improvement on abstract statements of lex specialis, leaves a number of questions unanswered. One is also left with the question of whether the alternative approach, of demanding the Contracting Parties to derogate in order to access rights under IHL that the text of the Convention does not appear to permit, might eventually have been accepted by States and created a more robust mechanism for protecting rights."
NO PUNISHMENT WITHOUT LAW - In the case of Plechkov v. Romania the Court held, unanimously, that Romanian legislation on its exclusive economic zone was not sufficiently foreseeable (violation of Article 7, no punishment without law and a violation of Article 1 of Protocol No. 1 (protection of property)) The case concerned the sentencing of Mr Plechkov to a suspended prison term together with the confiscation of his boat (including the installations, tools and cargo on board) for allegedly fishing illegally within the Romanian “exclusive economic zone” in the Black Sea. The Court found that neither the provisions of domestic law nor its interpretation by the courts had rendered Mr Plechkov’s conviction sufficiently foreseeable. The confiscation of the ship with the tools and cargo on board had constituted an interference with Mr Plechkov’s right to the peaceful enjoyment of his possessions.

CRACKDOWN ON DEMONSTRATIONS - In Mocanu and Others v. Romania the Court (Grand Chamber) held by a majority that the investigation into the crackdown on demonstrations in Bucharest in June 1990 was defective and inadequate (violation of the procedural aspect of Articles 2, 3 and 6).
The case concerned the investigation and the length of the proceedings which followed the violent crackdown on anti-government demonstrations in Bucharest in June 1990. During the crackdown, Ms Mocanu’s husband was killed by gunfire and Mr Stoica was arrested and ill-treated by the police. The Court accepted that, in exceptional circumstances, the psychological consequences of ill-treatment inflicted by State agents could undermine victims’ capacity to complain about treatment inflicted on them and could constitute a significant impediment to their right to redress. Mr Stoica, like the majority of the victims, had found the courage to lodge a complaint only several years after the events, when the investigation which had already been opened of the authorities’ own motion seemed to be making progress. The Court therefore considered that, in the exceptional circumstances of this case, Mr Stoica’s vulnerability and his feeling of powerlessness amounted to a plausible and acceptable explanation for the fact that he had not lodged a complaint until 2001, more than ten years after the events. The Court found that the authorities responsible for the investigation had not taken all the measures which could have led to the identification and punishment of those responsible for the violent events and that the applicants had not had the benefit of an effective investigation for the purposes of the Convention. While acknowledging that the case was indisputably complex, the Court considered that the importance of the political stakes for Romanian society should have led the Romanian authorities to deal with the case promptly and without delay in order to avoid any appearance of collusion in or tolerance of unlawful acts.

"1.  This case concerns the crackdown on anti-government demonstrations from 13 to 15 June 1990 in the Romanian capital, which resulted in several civilian casualties, including the first applicant’s husband, Mr Velicu Valentin Mocanu, who was killed by a shot fired from the headquarters of the Ministry of the Interior. Mr Marin Stoica, the second applicant, and other persons were arrested and ill-treated by uniformed police officers and men in civilian clothing in the area around the headquarters of the State television service and in the basement of that building. I agree with the finding in the judgment concerning a violation of the procedural aspect of Article 2 of the Convention in respect of Mrs Anca Mocanu. It is the Court’s established case-law that the procedural obligation to carry out an effective investigation under Article 2 constitutes a separate and autonomous duty on Contracting States. It can therefore be considered an independent obligation arising out of Article 2, capable of binding the State even when the substantive aspect of Article 2 is outside of the Court’s jurisdiction, by reason of ratione temporis (see Šilih v. Slovenia [GC], no. 71463/01, § 159, 9 April 2009). However, I cannot follow the majority in its conclusion that the applicant Mr Stoica lodged his application concerning a procedural violation of Article 3 of the Convention in due time. (-)
5.  It is understandable that, following the events of June 1990, the applicant was in such a state of distress that he was initially afraid of the oppressive authorities. However, the reason given for not filing complaints on the domestic level for a number of years after 1994, that is, when Romania had already become a Party to the Convention, was a lack of confidence in the effectiveness of the ongoing investigations. That state of affairs should normally have triggered the beginning of the six-month rule on filing a complaint with the Court. An applicant has to become active once it is clear that no effective investigation will be provided, in other words, once it becomes apparent that the respondent State will not fulfil its obligation under the Convention (see Chiragov and Others v. Armenia (dec.) [GC], no. 13216/05, § 136, 14 December 2011, and Sargsyan v. Azerbaijan (dec.) [GC], no. 40167/06, § 135, 14 December 2011, both referring to Varnava and Others, cited by the Court, § 161). I find it hard to understand that the Court can only conclude, having regard to the exceptional circumstances in issue, that the applicant was in a situation in which it was not unreasonable for him to wait for developments that could have resolved crucial factual or legal issues. Such a conclusion seems hardly compatible with the degree of diligence incumbent on the applicant; nor does it promote meaningful and effective examination of such cases by the Court."

"1. I do not share the majority’s opinion that the Court has jurisdiction ratione temporis to examine the complaints under the procedural aspect of Articles 2 and 3 of the Convention. In my opinion, these two complaints fall outside the temporal scope of the Convention and the part of the application based on these two Articles ought to have been declared inadmissible for this reason. Consequently, it is not necessary to dismiss, or even to examine the objections raised by the Government. Given that Articles 2 and 3 of the Convention are not applicable in this case, the respondent State could not have breached those provisions. In addition, in the absence of a violation of the Convention, there is no need to award compensation under this head.
11.  The majority emphasises the fact that “in cases concerning torture or ill-treatment inflicted by State agents, criminal proceedings ought not to be discontinued on account of a limitation period, and also that amnesties and pardons should not be tolerated in such cases” (see paragraph 326 of the judgment). I would note here a certain incoherence with the positions taken in the judgments in the cases of Janowiec (cited above) and Margus v. Croatia ([GC], no. 4455/10, 27 May 2014). In the Janowiec judgment – which, it should be remembered, concerns war crimes – “[the Court] emphasise[d] the fundamental difference between having the possibility to prosecute an individual for a serious crime under international law where circumstances allow it, and being obliged to do so by the Convention” (see paragraph 151) and accepted the idea that the passage of time could extinguish the obligation to investigate and prosecute. In the case of Margus, the Court took a highly nuanced position on the question of amnesties, stating that “[a] growing tendency in international law is to see such amnesties as unacceptable because they are incompatible with the unanimously recognised obligation of States to prosecute and punish grave breaches of fundamental human rights. Even if it were to be accepted that amnesties are possible where there are some particular circumstances, such as a reconciliation process and/or a form of compensation to the victims, the amnesty granted to the applicant in the instant case would still not be acceptable since there is nothing to indicate that there were any such circumstances” (see paragraph 139). I do not see how the opinions expressed in these two latter judgments can be reconciled with the position adopted in the present case and set out above. The Court’s precise position on the issues of limitation and amnesty has thus yet to be clarified.
I subscribe fully to the idea that the crimes committed by the totalitarian and authoritarian regimes must be prosecuted, and the perpetrators brought to justice. However, I consider that the position taken by the majority in this case concerning the issue of limitations and amnesties is too rigid. The category of “ill-treatment” encompasses very different actions. Legitimate considerations of rational penal policy may justify limitation or amnesty, at least for acts of lesser seriousness.
12.  The protection of human rights on the basis of the Convention for the Protection of Human Rights and Fundamental Freedoms has its limits and its lacunae. They are to be regretted, but we must accept them. It is for the High Contracting Parties to correct them by means of new treaties."
RELIGIOUS EDUCATION - In its judgment in the case of Mansur Yalçın and Others v. Turkey (in +French only) the Court held that Turkey must reform religious education in schools to ensure respect for parents’ convictions (violation of Article 2 of Protocol No. 1 (right to education) to the European Convention on Human Rights with regard to Mansur Yalçın, Yüksel Polat and Hasan Kılıç).
In this case, the applicants, who are adherents of the Alevi faith, an unorthodox minority branch of Islam, complained that the content of the compulsory classes in religion and ethics in schools was based on the Sunni understanding of Islam. The Court observed in particular that in the field of  religious instruction, the Turkish education system was still inadequately equipped to ensure respect for parents’ convictions. The violation of Article 2 of Protocol No. 1 found by the Court on that account had arisen out of a structural problem already identified in the case of Hasan and Eylem Zengin2. Turkey had to remedy the situation without delay, in particular by introducing a system whereby pupils could be exempted from religion and ethics classes without their parents having to disclose their own religious or philosophical convictions.

CRIME DATABASE - In the case of Brunet v. France (in French only) the European Court of Human Rights held, unanimously, that the French crime database system was in breach of the Convention for storing information on individuals against whom proceedings have been dropped (violation of Article 8 (right to respect for private and family life). The case concerned a complaint about Mr Brunet’s details being recorded in a crime database after the discontinuance of criminal proceedings against him. The Court found in particular that Mr Brunet had not had a real possibility of seeking the deletion from the database of the information concerning him and that the length of retention of that data, 20 years, could be assimilated, if not to indefinite retention, at least to a norm rather than to a maximum limit. The Court concluded that the State had overstepped its discretion to decide (“margin of appreciation”) on such matters: the retention could be regarded as a disproportionate breach of Mr Brunet’s right to respect for his private life and was not necessary in a democratic society. Read also Roseline Letteron: Liberté, Libertés chéries - La Cour européenne plonge dans le STIC
“Certains considèrent sans doute que la décision Brunet c. France n'est que la survivance d'un droit dépassé, dont les défauts ont été corrigés. En réalité, la question essentielle posée par l'arrêt n'est pas résolue. Aucun des recours offerts, magistrat référent et même juge administratif, n'est en mesure d'exercer le contrôle de proportionnalité exigé par la Cour. Celle-ci n'hésite d'ailleurs pas évoquer la nécessité d'un contrôle d'"opportunité", notion qui va bien au-delà du contrôle assuré par la juridiction administrative française. Sur ce point, la décision de la Cour européenne révèle sans doute, a contrario, les limites du contrôle de l'excès de pouvoir.”
and: Serge Slama L’invocabilité des « lignes directrices » de la circulaire Valls comme remède à l’infra-droit des procédures de régularisation de sans-papiers ?

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